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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
D. BHARATHA CHAKRAVARTHY, J.
S. Velusamy – Appellant
Versus
The Inspector of Police, Avinashipalayam Police Station, Tiruppur & Others – Respondents
Crl.M.P. No. 17973 of 2022 in Crl.R.C. No. 1223 of 2022 & W.P. No. 5809 of 2023
Decided On : 20-07-2023
Criminal Revision - Preliminary Enquiry - Lalithakumari case - Sections 380 of IPC, Sections 3 and 4 of Tamil Nadu Public Property (Prevention of Damage and Loss) Act - [2014 (2) SCC 1], [2018 (4) MLJ (crl.) 513] - The court discussed the power of review for a criminal court, the circumstances in which an order can be recalled, and the need for a preliminary enquiry before registering a case. The court also highlighted the importance of following the dictum of the Hon'ble Supreme Court of India in Lalithakumari's case and the need to exhaust the remedy under Section 154(3) Cr.P.C. before invoking Section 482 Cr.P.C.
Fact of the Case:
The petitioner filed a Criminal Revision Petition to set aside the order directing a preliminary enquiry and to issue a direction to register the First Information Report. The respondent police conducted a preliminary enquiry and closed the complaint without registering any case. The petitioner challenged the closure report and sought registration and investigation of the case by an independent agency.
Finding of the Court:
The court found that the order directing a preliminary enquiry was in line with the directions of the Hon'ble Supreme Court of India in Lalitakumari's case. The closure report was not high-handed or violative of the court's orders. The court emphasized the need to exhaust the remedy under Section 154(3) Cr.P.C. before invoking Section 482 Cr.P.C. The court also directed the third respondent to conduct an enquiry and take appropriate action against the respondents involved in cutting the trees.
Issues: 1. Whether the order of the court directing a preliminary enquiry is liable to be recalled? 2. Whether the closure report of the police is liable to be set aside and a further direction is to be given for registration of a case and investigation? 3. What other reliefs to be granted?
Ratio Decidendi: The court cannot recall the order as it was not passed without hearing the party concerned or on abuse of process. The closure report was not high-handed and the petitioner must follow the dictum of the Hon'ble Supreme Court of India in Lalithakumari's case. The court directed the third respondent to conduct an enquiry and take appropriate action against the respondents involved in cutting the trees.
Final Decision: Crl.M.P.No.17973 of 2022 stands dismissed; W.P.No.5809 of 2023 is dismissed with liberty to file a private complaint before the appropriate Magistrate; The third respondent is directed to conduct an enquiry and take appropriate action against the respondents 4 to 15; The third respondent shall ensure planting of new saplings of Banyan tree, Peepal tree and Neem tree within the premises of the temple.
JUDGMENT
(Prayer: Criminal Miscellaneous Petition has been filed under Section 482 of Cr.P.C., to recall the order dated 29.08.2022 made in Crl.R.C.No.1223 of 2022 which has directed the first respondent to conduct Preliminary enquiry on the complaint of the petitioner, dated 09.06.2022, forwarded by the second respondent and may pass an order directing registration and investigation of the case by some other independent agency.
W.P.No.5809 of 2023 : Writ Petition has been filed under Article 226 of the Constitution of India, to issue a writ of Certiorarified Mandamus, to call for the records of the first respondent herein pertaining to the Closure Report, dated 17.12.2022, concerning the petitioner''s complaint dated forwarded by the second respondent and quash the same and direct the CB-CID, Tirppur or any other independent agency to register the pettioner''s complaint, dated 09.06.2022 and investigate the same.)
The Petitions:
1. The Criminal Revision Petition in Crl.R.C.No.1223 of 2022 was filed to call for the records and set aside the order dated 10.08.2022 made in Crl.M.P.No.2879 of 2022 on the file of the learned Judicial Magistrate, Palladam and to further issue a direction to any other independent agency for registration and investigation of the petitioner''s complaint, dated 09.06.2022. The said criminal revision case was disposed of by this Court by an order dated 29.08.2022 on the following directions:
“...5. In that view of the matter, this Criminal Revision is disposed of on the following terms:
(i) The order of the learned Judicial Magistrate, Palladam, dated 10.08.2022 made in Crl.M.P.No.2879 of 2022 is set aside.
(ii) The complaint of the petitioner dated 09.06.2022 is forwarded to the 1st respondent police. The 1st respondent shall conduct the preliminary enquiry and follow the procedure as laid down by “Lalithakumari case” and depending upon the outcome of the preliminary enquiry, the 1st respondent shall register the case and investigate into the same and file the final report in accordance with law or shall give such intimation as mandated under law to the petitioner.”
1.1. Aggrieved thereof, the original revision petitioner filed Crl.M.P.No.17973 of 2022 to recall the above order inasmuch as it only gives a direction to conduct a preliminary enquiry and to issue a positive direction to register the First Information Report and proceed with the investigation.
1.2. Pending the recall petition, the respondent police, namely, the Inspector of Police, Avinashipalayam Police Station, conducted a preliminary enquiry and closed the complaint, vide his report, dated 17.12.2022 without registering any case and therefore, the petitioner herein had filed W.P.No.5809 of 2023, challenging the said closure report and to forward the petitioner''s complaint to CBCID, Tiruppur or any other independent agency to register a case and investigate into the same. Since the subsequent writ petition and the recall petition were interconnected, the writ petition was ordered to be posted along with the recall petition and as such both are taken up for disposal by way of this common order.
1.3. As a matter of fact, all the proposed accused have been impleaded as party respondents and they are also represented by their counsel. This Court also impleaded the Assistant Commissioner of HR & CE Department, Tiruppur also as a party respondent and the learned Special Government Pleader appeared on behalf of the Department and made submissions.
B. The Submissions:
2. Heard Mr.S.Lakshmanaswamy, learned counsel appearing for the petitioner in Crl.M.P.No.17973 of 2022 and Mr.P.M.Duraiswamy, learned counsel appearing for the petitioner in W.P.No.5809 of 2023; Mr.S.Subbiah, learned Government Advocate (Criminal side) appearing for the State representing the Inspector of Police, Avinashipalayam Police Station; Mr.N.R.R.Arun Natarajan, learned Special G
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